Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A Texas state judge shocked the world last week by declaring the death penalty in that state unconstitutional. Now he explains that ruling:
A Houston judge who declared the death penalty unconstitutional Thursday clarified his ruling in an impromptu hearing Friday, saying he ruled the procedures surrounding the process in Texas are illegal.During Friday's hearing, prosecutors filed motions asking state District Judge Kevin Fine to reconsider his ruling and also to proceed with April's death penalty trial of John Edward Green Jr. Fine maintained at the hearing that he believes innocent people have been executed.
Naturally, the right wing is freaking out about this:
Fine's clarification came in the wake of a firestorm of criticism from District Attorney Pat Lykos, the Texas Attorney General's Office and Gov. Rick Perry protesting that Fine ignored well-settled law.Fine is expected to rule on the motions next week. He did not return calls for comment Friday.
When asked direct questions Thursday about his ruling, Fine said he was declaring the death penalty unconstitutional because he believes innocent people have been executed.
Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.
"As a practical matter, if you strike down that statute, you're not necessarily striking down 'the death penalty' but you're striking down the way we try death penalty cases," said Bill Exley, an assistant Harris County district attorney. "So the effect is that you can't have a death penalty because you can't get there."
I fully expect this ruling to be overturned, of course. If there is a state that, on the whole, cares less about justice than Texas, I can't imagine who it might be. But kudos to him for ruling this way in the first place.
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Comments
Wait, a Texas judge effectively struck down the death penalty last week and I somehow managed not to hear about it until now? How in the hell did that happen? It's not as if I've been avoiding reading the news.
That's like the Pope converting to Islam and having the story buried in the back pages of the paper.
Posted by: DaveL | March 11, 2010 9:20 AM
I, too, heard nothing about this! How? I've heard plenty of "news" about the Oscars, Lindsey Vonn, etc. during the same period.
Posted by: peter | March 11, 2010 9:28 AM
If this ruling somehow manages to not get overturned, it will be a huge victory for justice in our country. IIRC, Texas has a much higher number of executions than any other state.
Posted by: catgirl | March 11, 2010 9:28 AM
Texas executions aren't just higher. They account for about half the U.S. executions.
Posted by: Ace of Sevens | March 11, 2010 9:36 AM
...the Texas Attorney General's Office and Gov. Rick Perry protesting that Fine ignored well-settled law.
Since when have Texas Republicans been concerned about "well-settled law?"
Posted by: Chiroptera | March 11, 2010 9:44 AM
Don't get too excited, y'all. The judge reversed his decision this week: http://tinyurl.com/yaxqw2s
Posted by: Tex | March 11, 2010 9:45 AM
Not much chance of that, catgirl. This will go to the Court of Criminal Appeals at the next (and last) level; this is the same court that has to sign off on every single execution in the state. Hmmm, I wonder what their opinion on this will be?
Posted by: Scott Simmons | March 11, 2010 9:47 AM
Nor have I seen anything about this in the news! Why?
Posted by: Reverend Rodney | March 11, 2010 9:47 AM
"As a practical matter, if you strike down that statute, you're not necessarily striking down 'the death penalty' but you're striking down the way we try death penalty cases," said Bill Exley, an assistant Harris County district attorney. "So the effect is that you can't have a death penalty because you can't get there."
This quote shows how abysmally dim-witted and rigid Texas law-enforcers are: if they can't "get there" they way they've always "got there," they can't even bring themselves to try to find an alternate route.
Nor have I seen anything about this in the news! Why?
Because we're all too terrified of some formless boogeyman to even let ourselves see this sort of news, let alone discuss it openly.
Posted by: Raging bee | March 11, 2010 9:58 AM
This is one of those gol-durned impingements on liberty by the danged-old cussed liberl activist judges. We otter be able to kill anyone who looks at us crossways and if the state govmint caint do it, just give us our guns back an we'll take care of it fronteer-like.
People accused of crimes don't deserve rights. If they aren't the ones that committed the crimes and hurt the famblies, at least the famblies will know that someone paid and they will feel all better.
In seriousness, the Innocence Project has illustrated in a wealth of cases why the Death Penalty should not be used. If one is wrongfully convicted of a crime and is serving a life term, that person can be released with an apology. If they have been killed, that remedy is not open to them.
Posted by: Mike Haubrich, FCD | March 11, 2010 10:33 AM
Tex, it's fascinating to read the comments to that story from death penalty supporters, like this from the first one:
"To repeat, Judge Fine there is no law or opinion that finds that due process must be infallible. Since the first incarcerations and the first executions, man has always known that there was always the "possibility" of actual innocents being imprisoned and/or executed and that, in both cases, due process may not reveal that actual innocence prior to their deaths, or ever."
I'm always intrigued when a death penalty supporter, who thinks that the premeditated killing of innocent person is a crime punishable by death, are perfectly okay with the prospect of the death penalty leading the premeditated killing of an innocent person. That their brains can't detect the paradox is just...mind boggling.
Posted by: Tyler DiPietro | March 11, 2010 11:03 AM
Mmmm, word gaps. I need some caffeine.
Posted by: Tyler DiPietro | March 11, 2010 11:07 AM
What does it say about people that they get much more upset about the prospect of not being able to execute someone then about the prospect of executing innocent people? That attitude is fundamentally sick.
Posted by: Taz | March 11, 2010 11:14 AM
Speaking of Texas and the execution of the innocent, a commenter at Volokh had this interesting bit of math:
"Since 1976, there have been 746 executions in this country, excluding Texas. During that time, 127 people have been exonerated while on death row, excluding Texas. That’s 14.5% wrongfully convicted but spared before execution.
Now, a study of how many death penalty trials have taken place needs to occur before accepting this analysis as totally valid. After all, Texas might have found more people not guilty, or other states are more willing to accept plea bargains than Texas is. However, on the surface it is pretty disturbing stuff.
Posted by: History Punk | March 11, 2010 11:14 AM
Tex is right, but we must be precise about exactly what the judge has done. He has not reversed his decision, nor even rescinded it; he has instead put it in abeyance until April 12th, when attorneys must submit their arguments on the matter. He will hold a hearing on April 27th on the narrow question of whether Texas law theoretically permits the execution of innocent people. This is a major development: there will be full-blown legal analysis of Texas' abysmal death penalty record. That analysis will provide a solid legal basis for declaring that Texas' legal procedures for applying the death penalty are unconstitutional. This could end up being fought all the way to the Supreme Court. The question is, how much care must the state take in protecting innocent people from the death penalty? What's new here is the substantial evidence that Texas has executed innocent people. The argument would then be as follows: if we can show that Texas, using its existing procedures, has executed innocent people, then we can prove that Texas' existing procedures provide insufficient protection to the accused -- in which case those procedures are unconstitutional. Texas would then be required to provide more careful procedures. It could still have the death penalty, but higher standards of evidence would be required.
Posted by: Erasmussimo | March 11, 2010 11:37 AM
Don't forget several highly pubicized cases of individuals being sent to death row (and executed?) despite there being clear evidence that they were innocent. If Texas has less people exonerated on Death Row, I suspect it has more to do with the lack of care about innocence than lack of evidence. There are many ways of burying or ignoring evidence that says an innocent man was sent to death. The Death Penalty must be preserved at all costs - it's a Texas Tradition!
Posted by: Badger3k | March 11, 2010 11:55 AM
Not executing murderers in Texas means more murders will occur. I for one do not want to be murdered during one of my infrequent visits to Texas. Why does this judge want me to be murdered?
Clearly the most efficient approach here would be to execute murderers before they kill. Since Texas has determined that it is acceptable to execute some who are not guilty, simple human algebra leads us to the conclusion that preemptive execution would be even more valuable to society. (Scoff if you like. People scoffed at my idea for pre-plowing roads before snowstorms, but who's laughing now!) We've invested two generations of political attention-span in cultivating electoral stupidity, so Texas should be able to count on voters approving their own beheading then going on local TV to demand that they be tortured first.
This order also means Todd Willingham was not executed, but murdered, since he was almost certainly not guilty beyond an even Texas-quality reasonable doubt. If he is not guilty, then he must be released to kill again. Texas has just legalized zombies! Think of the possibilities for tourism! and for video-game-addiction rehabilitation camps! What better treatment for a 14-year-old who has been besotted by first-person shooters to be chained to a urine-soaked bedstead in a dark hospital alone while real live zombies scrabble at his door, demanding hot brains and adequate counsel! Also, this would make Texas the destination of choice for movie makers of zombie flicks. And would give the state the chance to achieve full zombie employment, which has been the elusive goal of economist zombies for many years, or at least since FICA.
The same math indicates that, by 2023, Texas will be the first state in which murderers outnumber murder victims. This will create a strong market force, bringing many more murder victims into the economy and encouraging increased murder productivity, stimulating the sale of firearms, ammunition, andirons, duct tape, and Toyotas. Total win-win.
ice9
Posted by: ice9 | March 11, 2010 12:27 PM
He will hold a hearing on April 27th on the narrow question of whether Texas law theoretically permits the execution of innocent people.
Well, that sounds like a loser. Human justice is always going to be imperfect: the State's ability to fine you or incarcerate you also rests on the assumption that they can (erroneously) fine or incarcerate innocent people...so long as due process has been observed. "Theoretically" the law must permit the (erroneous) punishment of innocent people, otherwise the entire system falls apart because we have no absolute, perfect way of telling guilt and innocence.
The real issue is whether the legal process minimizes the risk of error commensurate to the punishment. A $10 fine doesn't require the due process an execution does. In that context, its certainly worth asking whether the TX procedures are "good enough" for capital punishment. Its even worth asking whether any system is good enough when it comes to captial punishment. The answer could be "no." But it is foolish and stupid to ask whether the state can (erroneously) punish innocent people. If we are to have any justice system at all, it can't be otherwise.
Posted by: eric | March 11, 2010 12:34 PM
Taz, #13: What does it say about people that they get much more upset about the prospect of not being able to execute someone then about the prospect of executing innocent people? That attitude is fundamentally sick.
I've always felt that there is a significant element in the pro-capital punishment side that hold very primitive beliefs. A horrendous crime has occurred, one that upsets the very order of the universe, and a blood sacrifice is necessary to restore the balance. That is the only way I can try to understand why there seems to be a desperate need to kill someone, anyone, as quickly as possible even at the risk of killing someone who didn't actually commit the crime.
Posted by: Chiroptera | March 11, 2010 2:44 PM
I don't have a problem with the death penalty. Some crimes are so heinous and evil that the public psyche is served by the death of the perpetrator. That said, in this country, whether you end up with a needle in your arm depends mostly on your wealth and skin color.
There needs to be a higher burden on the state than mearly "beyond a reasonable doubt" to put someone to death. Maybe not quite "beyond a shadow of a doubt," but close to it. And defendants in death penalty cases need access to better counsel than just brand new public defenders.
As it stands now, the appeals process can be so long and expensive that it is cheaper to house a prisoner for life than to put him to death. Raising the bar would make that even more expensive, but it would also force the state to only take its more notorious and unimpeachable cases to trial as death penalty cases.
Posted by: The Gregarious Misanthrope | March 11, 2010 2:53 PM
I find it interesting that the Texas AG is so gung-ho on ensuring that the death penalty remain in place. Isn't his job to prosecute and convict criminals to protect the people of the State of Texas?
Posted by: Michael Durrant | March 11, 2010 2:57 PM
i've been a criminal defense lawyer in Tx for 27 years and have handled several death penalty cases (beat two of em!).
the Beyond a reas doubt standard sounds great (proof to a moral certainty, so convincing that you'd rely upon it wihtout hesitation in the most important of your own affairs) but you should hear how the prosecutors try to downplay that to juries ["now, that doesn't mean beyond all doubt..." and try to make it sound like buying a used car], and of course the [elected every 4 yrs by Texans] judges let em.
found self on a jury panel once with prosecutor who thought i was real rightwinger, so he asked me what BRD meant. he was appalled when i laid out the actual standard in detail, with examples (the operation could kill or cure your only child, but you're so sure you wouldn't seek a second opinion), for the panel. of course, having built me up as a lawyer, he was pretty much stuck with my answer, not least since it was correct. they struck me, but jury later hung because they actually applied the standard.
IMHO, having seen it from the inside, we got no damn business imposing a 100% final punishment when we use as weak an evidentiary standard as is de facto applied in Tx criminal trials.
Posted by: payaso de la mar | March 11, 2010 4:59 PM
Seems, two wrongs don't make a right. To murder, {judiciously}, is murder.
Posted by: Old Ari | March 11, 2010 5:59 PM
Ice9 @17 proposes the preemptive execution of all Texans, and becomes my hero.
Remember, even the devil said Texas was too hot for a hell, so only the super-damned end up there.
Posted by: James Hanley | March 11, 2010 7:29 PM
"If there is a state that, on the whole, cares less about justice than Texas, I can't imagine who it might be."
How about Mississippi?
Posted by: Miko | March 11, 2010 8:23 PM
@The Gregarious Misanthrope #20:
The lynch mob wants its lynchings, so the criminal justice system should give it them? For what crimes? Sheep-stealing? Cattle-rustling?
Anyway, what's this "public psyche" business - at least acknowledge that it's your psyche at issue here.
If the public at large believes that it has the right to take the life of a fellow member of society - for any or no reason - it should be disabused of the belief as quickly as possible. Ditto yourself.
Posted by: Robin Levett | March 12, 2010 7:41 AM
In seriousness, the Innocence Project has illustrated in a wealth of cases why the Death Penalty should not be used. Houston Criminal Attorney when asked direct questions Thursday about his ruling, Fine said he was declaring the death penalty unconstitutional because he believes innocent people have been executed. Houston Criminal Attorney
Posted by: Houston Criminal Attorney | March 15, 2011 11:53 AM